RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 September 2005
      DOCKET NUMBER:  AR20040010590


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge (GD)
under honorable conditions be upgraded to a fully honorable discharge and
that the narrative reason for separation, "Misconduct-commission of a
serious offense," be corrected to reflect that he received a fully
honorable discharge.

2.  The applicant states, in effect, that at the time he was separated, the
Army was unaware that their methods of drug testing were unreliable.  He
believes he was subjected to a "witch-hunt."  As a result he was wronged by
powers beyond his control and he believes it is in the interest of justice
for those who have the power to take corrective action to do so.

3.  The applicant states in a letter written to the Board that, at the time
of his discharge, he was temporarily attached to the Academy of Health
Science (AHS), Special Forces Medical Detachment, Fort Sam Houston, Texas.
In effect, he believes the Board will see that he was an exemplary Soldier
and his military history does not demonstrate the qualities and
characteristics of a Soldier with a drug problem.  In fact, he was taking
medication for a sinus problem at the time of his positive urinalysis test.
 Now, these types of drugs are known to reflect false positive test
results; this was not known at the time.  Initially, he was offered a field
grade nonjudicial punishment; he refused and he was advised to seek legal
representation.  Upon seeking legal representation, he was led to believe
that nothing would happen to him and he would be allowed to stay in the
military, if he confessed.  After he confessed, he was advised that he
could be reassigned within AHS and he could never return to the Special
Forces, or he would be administratively discharged.

4.  The applicant further states that he completed almost 5 years of
military service and he was never punished for misconduct.  After he was
separated, he enlisted in the Texas Army National Guard, his clearance was
reinstated, and he trained and operated with NATO Special Operations units.
 He was discharged on 1 February 1988, after completing 2 and 1/2 years of
honorable service.  He is in the process of entering law school.

5.  The applicant provides in support of his request:

      a.  Three character reference statements that were provided by a
first sergeant, a sergeant first class, and a civilian after he had been
separated from the Regular Army (RA).  Two statements are dated 8 March
1985, and the third statement is dated 17 November 1986.


      b.  NGB Form 22 (Report of Separation and Record of Service), dated
1 February 1982.

      c.  Orders 133-2, State of Texas, Adjutant General's Department,
dated
14 July 1986.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
7 December 1984.  The application submitted in this case is dated 25
November 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Prior to the period of enlistment under review, the applicant served
honorably in the Regular Army (RA) from 29 January 1980 to 27 January 1983,
until he was honorably separated for immediate reenlistment.  He was not
issued a DD Form 214 (Certificate of Release or Discharge from Active Duty)
at the time of separation.

4.  On 28 January 1983, the applicant reenlisted in the RA for 3 years, his
prior military occupational specialty (MOS) 62J (General Construction
Equipment Operator), and for assignment to Fort Bragg.  On 29 May 1984, he
extended his enlistment for a period of 14 months.  His new expiration term
of service (ETS) date was 27 March 1987.

5.  On 28 June 1984, while assigned to Fort Bragg, North Carolina, the
applicant's urine specimen tested positive during a unit urinalysis testing
for tetrahydrocannabinol (THC), a psychoactive compound in marijuana.

6.  On 3 September 1984, the applicant was assigned as a student to the
Academy of Health Science, Fort Sam Houston, Texas for completion of an
advanced training course.
7.  On 28 September 1984, the applicant was officially notified that he was
being recommended for discharge under the provisions of chapter 14, Army
Regulation
635-200, for misconduct, based on the above positive urinalysis specimen.
He was also advised of his rights.  On the same date, the applicant
acknowledged that he understood the ramifications associated with receiving
a discharge under other than honorable conditions.  He stated that he
desired further legal representation and he declined to submit a statement
in his own behalf.  He also stated that he desired to appear before a board
of officers.

8.  On 5 November 1984, the applicant consulted with a legal representative
and acknowledged that he understood the ramifications associated with
receiving a discharge under other than honorable conditions.  He stated
that he did not desire further legal representation, he declined to submit
a statement in his own behalf and he stated that he did not desire to
appear before a board of officers.

9.  The applicant's unit commander recommended that the applicant be
separated under the provisions of chapter 14, Army Regulation 635-200, for
misconduct.  The applicant's intermediate commander recommended that
further rehabilitation measures be waived and the applicant be separated at
the earliest possible date.

10.  On 26 November 1984, the approval authority waived further
rehabilitative requirements, approved the recommendation and directed that
the applicant be separated for misconduct with a GD.

11.  On 7 December 1984, the applicant was separated with a GD under the
provisions of chapter 14, Army Regulation 635-200, due to misconduct-
commission of a serious offense.  He had completed 4 years, 10 months and
9 days of creditable military service and he had no recorded lost time.

12.  The applicant's character reference statements were written after he
had been separated.  All three statements refer to the applicant's
professional demeanor, that he was honest and straight forward, that he
performed his duties in an exceptional manner, and that he exceeded
expectations.  In fact, his First Sergeant stated "He was honest and
straight forward when he admitted his one time error in judgment prior to
his assignment here."

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense,
convictions by civil authorities, desertion or absence without leave.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 Army policy states that a GD is considered appropriate.

14.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  Army policy states that a GD is
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Merriam-Webster's Online Dictionary defines "witch hunt" as "the
searching out and deliberate harassment of those (as political opponents)
with unpopular views."  The applicant's contention that he was the victim
of a witch hunt is not accepted.  The applicant underwent a random unit
urinalysis test at Fort Bragg and he tested positive for THC.  There was no
"witch hunt."

2.  When confronted with the results of his positive urinalysis test, the
applicant never stated that he had taken cold medicine which could have
caused a false positive test result.  The applicant offered no statement in
his own behalf.

3.  In the character reference statement provided by his former First
Sergeant, the First Sergeant states, "[H]e was honest and straight forward
when he admitted [emphasis added] his one time error in judgment."  The
Board takes this to mean an error in judgment by using marijuana.

4.  The applicant has offered no proof that the Army's drug testing program
at the time of his drug test was anything other than completely reliable.

5.  The applicant's use of illegal drugs diminished the quality of his
service below that meriting a fully honorable discharge.  The applicant
provided no independent corroborating evidence demonstrating that either
the command's action was erroneous or that the applicant's service
mitigated his misconduct.

6.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would have jeopardized his rights.  The type of discharge
directed and the reasons were appropriate considering all the facts of the
case.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 December 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
6 December 1987.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___le___  __pms___  __lgh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                        Lester Echols
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010590                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050929                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19841207                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0135                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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